Opinion
Civil Action No. 99-1840 (NHP).
June 12, 2000.
Alvin L. Burgess, Paterson, N.J., Plaintiff Pro Se.
Linda M. Smith, Assistant U.S. Attorney, ROBERT J. CLEARY, UNITED STATES ATTORNEY, Newark, N.J., Attorney for Defendants.
THE ORIGINAL OF THIS LETTER OPINION IS ON FILE WITH THE CLERK OF THE COURT
Dear Litigants:
This matter comes before the Court on the motion for summary judgment of defendants William J. Henderson, Postmaster General, and the United States Postal Service. This matter was resolved without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons explained below, the motion for summary judgment of defendants William J. Henderson, Postmaster General, and the United States Postal Service is GRANTED.
BACKGROUND
Alvin L. Burgess ("plaintiff"), a pro se plaintiff, filed a Complaint on April 27, 1999, alleging that William J. Henderson, as Postmaster General, and the United States Postal Service (hereinafter referred to collectively as "Postal Service" or "defendant") fired him because of his race and gender, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. In addition, plaintiff charges that the Postal Service filed negative evaluations concerning his work performance in retaliation for plaintiff seeking counseling for discrimination with the Postal Service Equal Employment Office ("EEO"). Plaintiff sues for back pay, compensation for emotional distress, and punitive damages.Plaintiff, an African-American male, was hired by the Postal Service facility in Hackensack, New Jersey, as a temporary employee/casual mailhandler on October 16, 1994, for a period not to exceed one year. On December 31, 1994, plaintiff was terminated from that position. Plaintiff then applied for a similar temporary position in the Paterson, New Jersey, Post Office on March 2, 1995. On May 31, 1995, the Postal Service denied plaintiff's application for employment at the Paterson Post Office. Apparently, plaintiff was denied the position based on the negative evaluations submitted by his superiors in the Hackensack office. On July 17, 1995, plaintiff accepted an offer from the Postal Service for a temporary position in Edgewater, New Jersey.
On or about August 30, 1995, plaintiff filed a formal administrative complaint with the EEO alleging racial discrimination and retaliation. The EEO accepted plaintiff's claim for investigation by letter dated October 20, 1995. On August 13, 1997, the EEO issued a Final Agency Decision, in which it denied plaintiff's claim as untimely for failure to contact an EEO counselor within forty-five days of his discharge. Plaintiff filed an appeal of the Final Agency Decision to the Equal Employment Opportunity Commission's Office of Federal Operations ("EEOC").
Plaintiff then filed a Complaint in federal court on November 12, 1997. On February 2, 1999, plaintiff's Complaint was dismissed without prejudice for failure to effect service of process. On November 17, 1998, the EEOC affirmed the Postal Service Equal Employment Office's Final Agency Decision denying plaintiff's claim. Plaintiff filed a request to reconsider with the EEOC on December 17, 1998, which was denied on March 18, 1999.
Defendant argues that plaintiff has failed to state a prima facie case of race and gender discrimination because he failed to prove that employees of a different race or gender received more favorable treatment. Defendant further argues that even if plaintiff has demonstrated a prima facie case of race and gender discrimination, he cannot show that defendant's legitimate, nondiscriminatory reasons for terminating plaintiff were pretextual. Plaintiff counters that the defendant has not proffered any legitimate, nondiscriminatory reason for his discharge.
DISCUSSION
I. Summary Judgment Standard
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment may only be granted if, drawing all inferences in favor of the nonmoving party, there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. See Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir. 1987). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, for which that party will bear the ultimate burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Moreover, the moving party bears the initial burden of identifying evidence that demonstrates the absence of a genuine issue of material fact. See id. at 323; Chipollini, 814 F.2d at 896. Once that burden has been met, the nonmoving party must set forth "specific facts showing that there is a genuine issue for trial," or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The nonmovant must "do more than simply show that there is some metaphysical doubt as to the material facts." Id. at 586. An issue is "material" only if the dispute "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To defeat "a properly supported summary judgment motion, the party opposing it must present sufficient evidence for a reasonable jury to find in its favor." Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995). If the record, as a whole, cannot "lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 587.
II. Discriminatory Discharge Claim
Because plaintiff has not presented direct evidence of discrimination, his race and gender discrimination claim under Title VII requires application of the familiar burden-shifting framework the Supreme Court articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See Simpson v. Kaye Jewelers, Div. Of Serling, Inc., 142 F.3d 639, 643-44 (3d Cir. 1998). Under McDonnell Douglas's burden-shifting analysis, the plaintiff must first establish a prima facie case of discrimination. See Jones v. School Dist. of Philadelphia, 1999 WL 1134576, *6 (D.N.J. Dec. 10, 1999). If the plaintiff succeeds in establishing a prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Id. Finally, should the defendant carry this burden, the plaintiff then must prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981) (citations omitted).
In order to defeat a summary judgment motion where the employer has articulated a legitimate, nondiscriminatory reason for the discharge, "the plaintiff must point to evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action." Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). While the burden of production may shift, "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Id.
A. The Prima Facie Case
The issue of whether a prima facie case has been made out by a plaintiff is a legal one for the Court to determine. See Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 348 n. 1 (3d Cir. 1999). To prove aprima facie case, the plaintiff must establish each of the following: (1) he belongs to a protected class; (2) he was qualified for the position; (3) he was discharged under circumstances that give rise to an inference of unlawful discrimination. See Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 3356-57 (3d Cir. 1999); Leung v. SHK Management, Inc., 1999 WL 1240961, *3 (E.D.Pa. Dec. 21, 1999); Brogan v. LaSalle University, 70 F. Supp.2d 556, 563-64 (E.D.Pa. 1999).
Contrary to the assertions of defendant, plaintiff's prima facie case is not undermined by the fact that he was replaced by another African-American male. In the recent Pivirotto decision, the Third Circuit held that a plaintiff claiming discriminatory firing need not prove that she was replaced by someone outside the protected class to make out a prima facie case. See 191 F.3d at 347. Rather, the Third Circuit concluded that McDonnell Douglas requires only "evidence adequate to create an inference that an employment decision was based on an illegal discriminatory criterion." Pivirotto, 191 F.3d at 356 (quoting O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996)). Reiterating prior Supreme Court precedent, the Court emphasized that the "central focus of the inquiry in a case such as this is always whether the employer is treating `some people less favorably than others because of their race, color, religion, sex, or national origin.'" Id. at 352 (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978)).
Plaintiff has met the first two prongs of the prima facie case. He is an African-American male who had experience as a casual mailhandler. Plaintiff cannot, however, point to any evidence that creates an inference that his discharge was based on the fact that he is an African-American male. Likewise, there exists no circumstantial evidence that similarly situated white and/or female employees were treated more favorably than plaintiff. The only evidence plaintiff provides is that he is an African-American male. Indeed, despite the Court's holding inPivirotto, the Third Circuit nonetheless recognized that the fact that a plaintiff was replaced by another person in the plaintiff's class holds "some evidentiary force . . . ." Pivirotto, 191 F.3d at 354. Here, plaintiff was replaced by another African-American male. Because plaintiff cannot make out a prima facie case of discrimination, summary judgment in favor of defendant is appropriate.
It is questionable whether plaintiff even satisfies the requirement that he was qualified for the job. Where a plaintiff failed to perform his job adequately, he is unqualified for the position and cannot make out a prima facie case of discrimination. See Spangle v. Valley Forge Sewer Authority , 839 F.2d 171, 173-74 (3d Cir. 1988). Attending work on a regular basis is an essential prerequisite of employment. See Tyndall v. Nat'l Educ. Centers, Inc. of Cal . , 31 F.3d 209, 213 (4th Cir. 1994); Carr v. Reno , 23 F.3d 525, 529 (D.C. Cir. 1994); Wilson v. U.S. Air Express , 1999 WL 722820, *5 (E.D.Pa. Sept. 15, 1999); Santiago v. Temple Univ . , 739 F. Supp. 974, 979 (E.D.Pa. 1990), aff'd , 928 F.2d 396 (3d Cir. 1991). Here, it appears that plaintiff had problems with attendance and following instructions. However, viewing the evidence in a light most favorable to this pro se plaintiff, the Court is of the opinion that the frequency of these transgressions is insufficient to deem plaintiff unqualified for his position as a matter of law.
B. Defendant's Legitimate and Nondiscriminatory Reasons for Plaintiff's Discharge
Even assuming arguendo that plaintiff can establish a prima facie case, defendant has presented legitimate and nondiscriminatory reasons for plaintiff's termination, which plaintiff has not discredited as pretextual. Defendant asserts that plaintiff was discharged as the result of attendance problems and failure to follow supervisor's instructions. By letter dated April 4, 1995, Plant Manager Joann Ford ("Ford") notified plaintiff that the reason for his termination was a failure to follow direct orders, leaving work without authorization, and a failure to report to work. Matthew Scaria ("Scaria"), one of plaintiff's supervisors, completed an evaluation of plaintiff's performance on May 3, 1995. Plaintiff received an "unsatisfactory" grade for both attendance and attitude on Scaria's evaluation. Scaria also completed an EEO Investigation Affidavit on February 15, 1996, commenting that plaintiff had "a problem with his attendance." In addition, Scaria stated that on one occasion plaintiff left an assignment without authorization. On another occasion, Scaria recalls that plaintiff had left work and gone home without permission. In fact, it is asserted that plaintiff was not informed of his termination on December 31, 1994, because plaintiff failed to show up for work as scheduled. Plaintiff has not rebutted these assertions.
Moreover, defendant contends that plaintiff was merely one of thirty-two casual mailhandlers who were discharged at the end of the Christmas mailing season. Of the twenty casual mailhandlers that were retained, thirteen were African-American and ten were male. Plaintiff was eventually replaced by another African-American male. Again, these facts remain uncontested by plaintiff.
Based on the evidence presented, plaintiff has failed to demonstrate that defendant's aforementioned legitimate, nondiscriminatory reasons for firing plaintiff are a pretext for racial and/or gender discrimination. Instead, plaintiff merely proffers the conclusory and unsubstantiated assertion that his supervisors' negative evaluations and affidavits are untrue, vague, and doubtful. Plaintiff, apparently operating under the misguided assumption that he was guaranteed his position for the whole year, in fact was not guaranteed a position for an entire one-year period. The record is bereft of any evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the defendant's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the defendant's action. See Fuentes, 32 F.3d at 763. Therefore, summary judgment in favor of defendant is appropriate.
III. Retaliation Claim
In order to succeed on a discriminatory retaliation claim, a plaintiff must demonstrate that: (1) he engaged in conduct protected by Title VII; (2) the employer took adverse action against him; and (3) a causal link exists between his protected conduct and the employer's adverse action.See Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 201 (3d Cir.), cert.denied, 513 U.S. 1022 (1994). It is settled that former employees may sue for discriminatory retaliation under Title VII. See Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997); Charlton, 25 F.3d at 198-200; Bailey v. USX Corp., 850 F.2d 1506, 1509 (11th Cir. 1988); O'Brien v. Sky Chefs, Inc., 670 F.2d 864, 869 (9th Cir. 1982), overruled on other grounds by Atonio v. Wards Cove Packing Co., 810 F.2d 1477, 1481-1482 (9th Cir. 1987) (en banc); Pantchenko v. C.B. Dolge Co., 581 F.2d 1052, 1055 (2d Cir. 1978); Rutherford v. American Bank of Commerce, 565 F.2d 1162, 1165 (10th Cir. 1977).
In this case, plaintiff sought counseling from the EEO and filed an EEO charge. This is protected activity under Title VII. See Nelson v. Upsala College, 51 F.3d 383, 386 (3d Cir. 1995). It is questionable, however, whether a negative performance evaluation, without more, can be considered an "adverse employment action." See Cossette v. Minnesota Power Light Co., 188 F.3d 964, 972 (8th Cir. 1999) (holding that a negative evaluation does not by itself constitute an adverse employment action under the ADA); Smart v. Ball State Univ., 89 F.3d 437, 442 (7th Cir. 1996) ("There is little support for the argument that negative performance evaluations alone can constitute an adverse employment action."); Meredith v. Beech Aircraft Corp., 18 F.3d 890, 896 (10th Cir. 1994); Burch v. Henderson, 2000 WL 97184, *5 (W.D.Mo. Jan. 27, 2000);Hines v. Hillside Children's Center, 73 F. Supp.2d 308, 324-25 (W.D.N.Y. 1999) (holding that single negative evaluation of employee was not adverse employment action); Castro v. New York City Bd. of Educ. Personnel, 1998 WL 108004, *7 (S.D.N.Y. Mar. 12, 1998) ("Courts have held that negative evaluations . . . that are unattended by a demotion, diminution of wages, or other tangible loss do not materially alter employment conditions."); Johnson v. Frank, 828 F. Supp. 1143, 1153 (S.D.N Y 1993) (holding that since plaintiff's midyear evaluation of "unacceptable" did not affect terms, privileges, duration or condition of plaintiff's employment, it did not constitute adverse job action for purposes of Title VII); Shabat v. Blue Cross Blue Shield, 925 F. Supp. 977, 989 (W.D.N.Y. 1996), aff'd, 108 F.3d 1370 (2d Cir. 1997) (finding that alleged discipline of plaintiff consisting of being "written up," which apparently meant that negative report was placed in his personnel file, was "too inconsequential to support an action under Title VII"); Boriski v. City of College Station, 65 F. Supp.2d 493, 505 (S.D.Tex. 1999) (holding that negative performance evaluations, even if undeserved, are not "adverse employment actions" giving rise to actionable retaliation claims under the FMLA). Accord Dela Rosa v. Scottsdale Mem. Health Sys., Inc., 1997 WL 753359, *2 n. 3 (9th Cir. Dec. 2, 1997), cert. denied, ___ U.S. ___, 119 S.Ct. 50, 142 L.Ed.2d 38 (1998).
To be sure, in Colgan v. Fisher Scientific Co., the Third Circuit intimated in a footnote that a negative evaluation may, under certain circumstances, constitute an adverse employment action and give rise to a discrimination claim. See 935 F.2d 1407, 1421 n. 10 (3d Cir.) (en banc),cert. denied, 502 U.S. 941 (1991) ("It does indicate, however, that a negative evaluation may `effect [sic] a term or condition of employment sufficient in some circumstances to give rise to a viable claim of discrimination.'") (citation omitted). Nonetheless, the facts surrounding plaintiff's retaliation claim in this case are not so extraordinary as to fall within whatever narrow exception Colgan may have created. Indeed, defendant has put forth evidence to show that the negative evaluations were based upon plaintiff's lackluster record of attendance rather than retaliatory intent. Because the negative evaluations given by defendant here do not constitute adverse employment actions, defendant is entitled to summary judgment on the retaliation claim.
In any event, even if the negative performance evaluation is considered an adverse employment action, plaintiff has not satisfied the third prong — that a causal link exists between plaintiff's protected conduct and the employer's adverse action. A causal link exists where there is a "connection between the allegedly retaliatory conduct and an employment relationship." Nelson, 51 F.3d at 387. This requires that the plaintiff demonstrate some type of "employment impairment that evidences actionable retaliation." Id.
In this case, plaintiff's supervisors wrote the negative performance evaluations either before plaintiff's EEO intake interview or before they were notified of plaintiff's EEO claim. Although plaintiff sought EEO counseling on March 24, 1995, he did not receive an intake interview with an EEO counselor until May 2, 1995. On May 3, 1995, Scaria completed an evaluation of plaintiff's performance, in which plaintiff received an "unsatisfactory" grade for both attendance and attitude. Defendant submitted uncontested evidence that the EEO's heavy workload prevents it from notifying parties involved in an EEO discrimination claim until at least one week after the intake interview. Therefore, plaintiff's supervisors would not have known about his EEO complaint until May 9, 1995 at the earliest. Based on this evidence, it appears that the negative evaluation written by Scaria on May 3, 1995 occurred before Scaria or the Postal Service were notified of plaintiff's EEO complaint. In addition, Ford's negative letter was received by plaintiff on April 4, 1995, prior to the date of plaintiff's EEO intake interview. Thus, there is no temporal link between plaintiff's protected activity and the adverse employment action.
Linda Highsmith, the Manager of EEO Complaints Processing for the United States Postal Service, testified that the EEO's heavy workload prevents it from notifying parties involved in an EEO discrimination claim until at least one week after the intake interview. In this case, Scaria would not have been contacted by the EEO concerning plaintiff's complaint until May 9, 1995 at the earliest. See Certification of Linda Highsmith at ¶ 12.
Furthermore, defendant presented evidence that the Postal Service does not regularly issue written evaluations of temporary employees' work performances. Rather, defendant contends, the reason plaintiff's evaluations were completed was only because he had applied for a position at the Paterson, New Jersey, Post Office in March, 1995, and not in retaliation for plaintiff's EEO complaint. This evidence further highlights the lack of a causal link between plaintiff's protected activity and the negative evaluations. As a result, plaintiff cannot demonstrate a causal link between his protected activity and the adverse employment action. Accordingly, defendant is entitled to summary judgment on plaintiff's retaliation claim.
CONCLUSION
For the foregoing reasons, the motion for summary judgment of defendants William J. Henderson, Postmaster General, and the United States Postal Service, is GRANTED. Accordingly, plaintiff Alvin L. Burgess's Complaint is DISMISSED.
An appropriate Final Order accompanies this Letter Opinion.